Material Witnesses and Enemy Combatants

Guest Author - Tracey-Kay Caldwell

This is the second in a series of articles examining the Timothy Lynch’s article, Doublespeak and The War on Terrorism. George Orwell, who introduced the concept of doublespeak in his novel, Nineteen Eighty-Four, depicted a totalitarian state where posters everywhere proclaimed that War is Peace, Freedom is Slavery, and Ignorance is Strength. In Timothy Lynch’s article he looks at the way the Bush Administration has redefined and developed a new vocabulary during the War on Terror.

Material Witness, a term we rarely heard before 9/11, is part of the new vocabulary Lynch examines. As Lynch points out, in many countries the police can arrest you at will. But in the United States our Constitution protects us from arrests that have no bases. In order to be arrested, the police must secure an arrest warrant. They must go before a judge a prove probable cause, that it is more likely than not that you have committed the crime they are going to arrest you for. There was however a law on the books that allowed a witness to a crime to be held by the police if they feared he would flee before the trial. The purpose of the law was to secure the witness of a crime, it was not for the purpose of detaining someone suspected of committing a crime. After 9/11 the government began to detain people they suspected of a crime, but did not have sufficient probable cause to secure an arrest warrant, under the material witness law. This enabled them to evade the check on the reasonableness of the arrest. The FBI detained Brandon Mayfield, an Oregon attorney, for two weeks as a material witness to an overseas terrorist bombing. During the time he was in jail, the police searched Mayfield’s home and office. The warrant to search his home referred to Mayfield as a “potential target.” The FBI released Mayfield, clearing him of any wrongdoing and apologizing for any hardship and negative publicity he and his family suffered. But this is the kind of hardship our Constitution was trying to protect us from by requiring the police to show probable cause before detaining a citizen. By redefining a suspect as a material witness they are able to deny us, as citizens, the protections our Constitution guarantees.

The legal procedure, Habeas Corpus, allows a prisoner to appear before an impartial judge who will decided if the jailer has a valid legal basis for the arrest and imprisonment. It is the most important safeguard our Constitution grants us to protect our individual liberty. The Constitution states that, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public safety may require it.” The Constitution grants Congress the power to suspend Habeas Corpus. Congress has not suspended Habeas Corpus, nor has the President ask them to do so; he simply tried to bypass Habeas Corpus. The Bush Administration knew that the Constitution gives rights to it citizens, even those suspected of being criminals. They attempted to avoid these protections by designating American citizens as “enemy combatants.” As enemy combatants they were held in solitary confinement. Since they were not criminals, they did not have a right to meet with an attorney. Since they were being held in solitary confinement they could not go to court to challenge their status as an enemy combatant. The government asserted even if an enemy combatant could meet with a lawyer a file petition to challenge his status, the courts should summarily dismiss the petition, as the courts should not second guess the presidents “battlefield” decisions. The battlefield, they defined as the whole world, including all of the United States. On the battlefield no legal rights exists. The President, as commander in chief, can incarcerate whomever he chooses. The Supreme Court declared the Bush Administrations enemy combatant policy illegal.

How did this ruling effect the Bush administration? Well when Cyrus Karr, an Iranian American and former U.S. Navy Seal, went to Iraq to make a documentary film, he was taken into custody and incarcerated at a U.S. military base. No charges were filed against him. His family and friends, getting nowhere with phone calls, letters and meetings, filed a lawsuit to force the government to account for their actions. When the military was asked why they had not complied with the recent Supreme Court ruling guarantying U.S. citizen the right to meet with counsel and have a hearing, they responded that Mr. Karr was not an enemy combatant, he was a “imperative security detainee.” So our right to Habeas corpus no longer protects us until the Supreme Court rules that imperative security detainees, who are U.S. citizens, are also protected by our Constitution. But By then the Bush administration will have a new label for those citizens they wish to detain with out Habeas Corpus.

This is the danger that lies within when we allow out elected officials to redefine the vocabulary of our Constitution. The document becomes worthless when each term can be redefined. When War can become Peace, Freedom can become Slavery, and Ignorance can become Strength. Look for the third article in this series examining Timothy Lynch’s article, Double Speak and the War on Terrorism, to see other ways in which the Bush Administration is finding ways around the limits placed on government by our Constitution.